Court Rejects Last-Minute Bid To Block Ohio From Using Software Patch on Voting Machines

U.S. District Court Judge Gregory L. Frost refused to grant a temporary restraining order on Tuesday that would have prevented Ohio Secretary of State John Husted from using a last-minute software patch that anti-electronic voting activists said could allow Republican partisans to tamper with the 2012 presidential vote count. The suit was filed by Robert Fitrakis, publisher of the Columbus-based FreePress.org, co-chairman of Ohio’s Green Party and and a Green Party congressional candidate in Columbus

“Fitrakis’s alleged harm is purely speculative,” Frost wrote in a decision issued early this afternoon. “He argues that the software 'alters the whole system' of tabulating votes. Though he makes this bold statement, his argument turned the burden of proof on its head; instead of explaining to the Court how how the system would be altered by the Secretary’s use of the EXP software, Fitrakis instead argued that 'there is no objective proof that the new software will not adversely affect the existing software in an unforeseen way…' The evidence presented at the hearing was not any more enlightening.”

Firrakis contended that the state had installed a software patch in several dozen Ohio counties that would allow it to alter the electronic vote counts. That possibility could cause “irreparable harm,” he told Frost’s courtroom in a hearing Tuesday morning.

The state replied that the software patch allowed the counties to skip the step of copying electronic vote subtotals by hand as they reported the vote vount to the Secretary of State, who compiles the statewide results. They denied that there was a “back door” into the new software that could allow anyone to alter an electronic vote count. They also said these software tabulations, delivered every 15 minutes to the state, would be saved and recorded.

“In short, the evidence presented did not substantiate Fitrakis’ contention that there was any real harm that the EXP software would effect the tabulation of the official vote count,” Frost wrote. “Having failed to demonstrate any burdern on his right to vote, Fitrakis has not shown a likelihood of succeeding on an equal protection claim.”

The decision is not likely to comfort anti-electronic voting activists who say there are many ways that the GOP can secretly steal the presidential election in the electronic vote-count phase. They will see the judicial rebuke as an effort by the court to marginalize their concerns.